Opinion
CLAIM NO. E120701
OPINION FILED JULY 12, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE L. T. SIMES, II, Attorney at Law, West Helena, Arkansas.
Respondent represented by the HONORABLE CHARLES ALLEN, Attorney at Law, West Helena, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondent appeals an opinion and order filed by the administrative law judge on September 8, 1993. In that opinion and order, the administrative law judge found that the respondent has a sufficient number of employees to bring it within the coverage of the Arkansas Workers' Compensation Law. In addition, the administrative law judge found that the claimant is entitled to compensation for a hernia.
Mr. Randy Gibbons is the owner of Gibbons Flying Service, and Gibbons Flying Service provides services consisting of the aerial application of pesticides and fertilizer. According to Mr. Gibbon's testimony, January through March of each year is generally a "dead period" for the aerial application business. His work increases for a couple of weeks during March. Then, he gets busy in April, and he stays busy with aerial applications through August or September. At the time of the claimant's injury, Gibbons Flying Service had one plane. Mr. Gibbons testified that he worked by himself during the light periods. However, during the busy period, he hired one worker to assist him with aerial applications. No evidence was presented regarding the duties of this worker.
In addition to the aerial application business, Mr. Gibbons also has a contract with a business called Service Gin. Under this contract, Mr. Gibbons is responsible for hauling trash from the gin to a field with a tractor and a trailer he owned, and he is responsible for hauling bales of cotton from the gin to the compressor on a truck he owns. Apparently, no ginning is occurring during the busy period for aerial applications, and there is little aerial application business when ginning is occurring. He testified that he used two workers to perform the work at Service Gin, and he testified that each worker works a twelve hour shift. Mr. Gibbons helps with hauling cotton and trash at the gin when he is needed. At times, employees of Service Gin and of the compressor assist Mr. Gibbons' employees in loading and unloading the bales of cotton.
The claimant contends that he sustained a work-related hernia on October 17, 1991. At the time, he was working Mr. Gibbons hauling cotton and trash at Service Gin. According to his testimony, he was loading a bale of cotton onto the trailer when he felt a sudden pain in his stomach. He also testified that he stopped work immediately because the pain was so intense that he could not move. With regard to the intensity of the pain, he testified that he felt as if someone had taken his breath away. He also testified that he advised another worker named West who was on the loading dock that his stomach was hurting. Mr. West was an employee of Service Gin. The claimant testified that he advised the manager of Service Gin, Donnie Loomus of this incident. He also testified that he advised a lady working for Service Gin that he needed to go to the doctor and that he asked her to contact Randy Gibbons. He did receive treatment that day from Dr. James Wise for complaints of left inguinal pain.
The first issue concerns whether the respondent had the requisite number of employees for coverage under the Arkansas Workers' Compensation Law. Generally, an employer is subject to the Arkansas Workers' Compensation Law and the jurisdiction of the Workers' Compensation Commission only if it regularly employs three or more persons in the course of its business. Ark. Code Ann. § 11-9-102 (3)(A) (1987). The employees of two or more businesses may be aggregated to reach the requisite minimum if the businesses are commingled such that they are actually operated as if they were one business. Humphries v. Bray, 271 Ark. 962, 611 S.W.2d 791 (Ark.App. 1981); Great Central Insurance Co. v. Mel's Texaco, 8 Ark. App. 236, 651 S.W.2d 101 (1983); see also, Kenneth Hardman v. J.T. Jenkins, Full Workers' Compensation Commission, Aug. 26, 1986 (Claim No. D509746). Such commingling of businesses has been found where the businesses had the same address, telephone number, bank account, internal revenue account, and employment security account and where there was interchangeable use of employees. Humphries, supra; Mel's Texaco, supra; Hardman, supra.
In the present claim, we find that the preponderance of the evidence fails to establish that Mr. Gibbon's business arrangement with Service Gin was a part of the business of Gibbons Flying Service. The claimant concedes that he did not perform any work related to aerial applications. Also, there is no evidence indicating that any of the workers employed on the Service Gin job ever assisted with aerial applications. All of the work was performed at Service Gin and the compress. Although the claimant testified that trucks and trailers were kept at the site of Gibbons Flying Service, there is no indication that this was the same equipment used at Service Gin. In fact, the evidence indicates that the equipment used at Service Gin was on the site and in use continuously during the ginning season. Furthermore, no evidence was presented pertaining to the accounting or organization of the two enterprises, other than a description of the services performed by each.
Consequently, we find that the preponderance of the evidence does not establish that Mr. Gibbons' business arrangement was a part of the business of Gibbons Flying Service. Instead, we find that a preponderance of the evidence indicates that the two enterprises were separate and distinct undertakings, connected only by Mr. Gibbons' participation in both. Therefore, we find that the workers employed by the two enterprises cannot be aggregated to reach the minimum.
We also find that Mr. Gibbons did not regularly employ three employees to perform work under the Service Gin contract. As construed by the Arkansas Supreme Court, the words "regularly employs" is not synonymous with "constancy." Wallace v. Wells, 221 Ark. 750, 255 S.W.2d 970 (1953); Aerial Crop Care, Inc. v. Landry, 235 Ark. 406, 306 S.W.2d 185 (1962). Instead, it is sufficient if the demands of the business are such that the requisite number of workers are regularly employed, although some or all of the workers may be only employed only periodically. In this regard, the Arkansas Supreme Court quoted the following language from Mobile Liners v. McConnell, 220 Ala. 562, 126 So. 626:
The word `regularly' is not synonymous with `constancy.' There are businesses of importance which employ numbers of men regularly, who employ none of them continuously. And a number of businesses, as this, will require a large number of employees, nearly all or a large number of whom are employed only periodically, for the reason that the needs of the business require their services only at intervals or periods, whenever the business is in active operation.
In the present claim, based on evidence in the record, we find that there is insufficient evidence to conclude that Mr. Gibbons regularly employed more than two workers at Service Gin. The claimant sought to obtain payroll records from Mr. Gibbons, but Mr. Gibbons testified that his accountant had lost these records. However, Mr. Gibbons compiled a list of individuals that he paid for working at Service Gin in September, October, and November of 1991, apparently from entries in his check log. This list indicates that ten individuals worked for Mr. Gibbons during this period of time. However, we find that this list is of little probative value. In this regard, there is no indication of the dates or times for which Mr. Gibbons was compensating the worker, and there is no evidence indicating whether these amounts reflect gross or net earnings. Moreover, Mr. Gibbons indicated that the amounts paid to some workers reflected loans made by Mr. Gibbons to the worker, and there is some indication in Mr. Gibbons' testimony that some workers were paid in cash at times.
The preponderance of the evidence contained in the record indicates Mr. Gibbons' work at Service Gin never required the regular employment of more than two employees. The claimant and James Earl Dotson, another individual who worked at Service Gin for Mr. Gibbons, both testified that other workers were present on the loading dock and assisted in loading the cotton at times. However, the claimant conceded that these individuals were employees of Service Gin. Moreover, Mr. Gibbons testified that only two employees were needed to perform the work, and the claimant's and Mr. Dotson's description of the work performed indicates that only two employees were needed and employed to perform the work. Although the list prepared by Mr. Gibbons raises certain questions, these questions are not sufficient to support a finding that more than two employees were regularly employed.
Therefore, we find that the preponderance of the evidence fails to establish that Mr. Gibbons was covered by the Act. Consequently, we find that the administrative law judge's decision in this regard must be reversed.
Furthermore, even if we were to find that Mr. Gibbons regularly employed the requisite number of employees, we would find that the claimant failed to prove by a preponderance of the evidence that his hernia is compensable. In order to establish entitlement to compensation for a hernia, Ark. Code Ann. § 11-9-523 (a) (1987) provides that the following requirements must be satisfied:
(1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;
(2) That there was severe pain in the hernial region:
(3) That the pain caused the employee to cease work immediately;
(4) That notice of the occurrence was given to the employer within forty-eight hours thereafter;
(5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within seventy-two (72) hours after the occurrence.
However, a hernia is not presumed to be compensable simply because the requirements of the hernia statute are met.Riley v. Monark Boat Company, 269 Ark. 819, 602 S.W.2d 411 (1980); Mickey Eubanks v. Tanyard Springs Resort, Full Workers' Compensation Commission, Apr. 12, 1989 (Claim No. D708576); Mark Bonner v. McKee Baking Co., Full Workers' Compensation Commission, Nov. 3, 1989 (Claim No. D614200)Martin Butler v. Easco Handtools Inc., Full Workers' Compensation Commission, Nov. 13, 1992 (Claim No. E018978).
In the present claim, the claimant testified that he experienced the sudden onset of severe pain in the inguinal area as he was lifting a bale of cotton weighing approximately 400 to 500 pounds, and he testified that this pain was so severe that he immediately ceased work for a period of time. The claimant did not present testimony from any of the others individuals he contends were present when this incident occurred or those individuals he contends he talked to soon thereafter. Mr. Dotson did testify that the claimant advised him of the incident that evening when Mr. Dotson came to work. However, it should be noted that Mr. Gibbons' list of payroll payments indicates that Mr. Dotson did not work on the date of the injury. Consequently, the only evidence to establish that the first three requirements are satisfied is the primarily uncorroborated testimony of the claimant.
With regard to the other requirements, the claimant testified that he left work and sought treatment from Dr. James E. Wise on the date of the alleged injury, and Dr. Wise's medical records do indicate that the claimant sought treatment for pain in the inguinal region. Therefore, the fifth requirement is satisfied. However, there is conflicting testimony regarding the notice requirement. The claimant testified that he talked to Mr. Gibbons after he returned from the doctor, and he testified that he advised Mr. Gibbons of the incident. On the other hand, Mr. Gibbons testified that the claimant did not inform him of the incident. He testified that the claimant did come to the gin and ask for his pay so that he could go home. However, he testified that he did not recall the claimant telling him that he had injured himself.
Consequently, the evidence indicating that the claimant satisfied four of the five statutory requirements is conflicting, and tenuous at best. Although Mr. Gibbons' credibility is suspect, we also find that the claimant's credibility is questioned due to conflicts in his testimony. In this regard, the claimant testified that he continued to experience severe pain which prevented him from working for 15 to 20 days. However, the claimant was also working at Turner Gin operating a press, and Melvin Sherrod, the manager at Turner Gin, testified that the claimant worked 8 hours on the night of October 17, 1991. Moreover, Mr. Sherrod testified that the claimant worked 8 hours per day from October 17, 1991, through October 23, 1991, and he testified that the claimant continued to work until his shift was discontinued on November 16, 1991. In addition, the evidence establishes that the claimant's work at Turner Gin also involved extremely heavy physical labor.
Also, as discussed, the claimant did see Dr. Wise on October 17, 1991, and Dr. Wise's office note indicates that the claimant had been having some left inguinal pain which began while he was lifting cotton that morning. However, Dr. Wise's records also establish that the claimant has a long history of problems involving the inguinal area. In this regard, Dr. Wise's office notes indicate that the claimant had complained of pain in the left inguinal area in January of 1991, after falling in Kansas City, and the claimant has undergone transurethral resections of the prostate gland on at least two occasions since 1975. In addition, we note that Dr. B. Tan who surgically repaired the hernia on April 8, 1992, indicated that the claimant denied any trauma as being the cause of the hernia.
We also note that the claimant applied for assistance from the Social Security administration, and the report of a general physical examination on January 22, 1992, indicates that the condition alleged by the claimant to be his primary disabling impairment involved pain in the lumbosacral area which radiated into his left hip. The report also indicates that the claimant complained of swollen glands and hands and that he related a history of problems in the left inguinal area. Although this report indicates that his primary complaint involved his back, Dr. Wise performed a general medical examination for the Arkansas Rehabilitation Services on February 4, 1992, only a few days later, and this report states that the claimant's major disabling condition involved a possible left inguinal hernia.
In short, the claimant's contention that his hernia was caused by any incident which occurred on October 17, 1991, while he was working for Mr. Gibbons at Service Gin is, in large part, uncorroborated, conflicting, and tenuous at best. Moreover, the evidence establishes that the claimant had experienced problems in the inguinal area for several years, and there is little credible evidence indicating that these problems were problems aggravated by his employment. Furthermore, the evidence establishes that the claimant was also engaged in other heavy manual labor during the same time period which potentially could have caused the problems. Therefore, even if Mr. Gibbons was covered by the Arkansas Workers' Compensation Law, we would find that the claimant failed to prove by a preponderance of the evidence that his hernia is causally related to his employment with Mr. Gibbons.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that Mr. Gibbons did not regularly employ the requisite number of employees to be subject to the Arkansas Workers' Compensation Law. Furthermore, even if we were to find that this claim is covered by the Act, we would find that the claimant failed to prove that his hernia is compensable. Therefore, we find that the administrative law judge's decision must be, and hereby is, reversed. This claim is denied and dismissed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.